Later this month, the U.S. Supreme Court will hear arguments in a suit between Comcast and Byron Allen, a prominent African American programming executive. What began as a fairly routine television carriage dispute has turned into a risky gambit that may give the Court’s conservative majority an opportunity to roll back fundamental civil rights protections.
The lawsuit arose out of Comcast’s decision several years ago not to carry several Allen-owned television channels, such as Pets.TV and Recipe.TV. Comcast has argued that its rejection of Allen’s channels was purely a business decision, reflecting what it viewed as the channels’ limited audience appeal.
Allen then promptly filed a $20 billion lawsuit against Comcast, alleging that the company’s refusal to contract with Allen’s company was racially motivated, in violation of Section 1981 of the Civil Rights Act of 1866. District Court Judge Terry Hatter – a well-respected African American judge with a strong record on civil rights – dismissed the case three times, finding that Allen had not established a plausible argument that Comcast would have contracted with his company “but for” Allen’s race.
Allen appealed to the Ninth Circuit, which remanded Judge Hatter’s dismissal with a new guideline to the lower court that a plaintiff can state a viable claim under Section 1981 if discriminatory intent plays any role in a defendant’s decision not to contract, regardless of whether race discrimination was a “but for” cause of that decision.
Comcast petitioned the Supreme Court to review the 9th Circuit’s decision, and the Supreme Court agreed; oral argument was scheduled for November 13, 2019. Carriage disputes between cable operators like Comcast, and programming content providers like Byron Allen, are exceedingly common. In my more than 30 years in the industry, I’ve represented both sides – networks seeking distribution and distributors seeking content – and in the early days of cable, I even represented minority-owned distributors such as Barden Cablevision of Detroit, and minority-owned programmers such as Black Entertainment Television.
In my experience, this Comcast-Allen case doesn’t fit the usual framework for a race discrimination case. As best I can surmise, Allen’s channels are not ethnically or culturally diverse; instead, he chose to press his case on racial grounds by asserting that Comcast was already carrying White-owned food and pet channels but chose not to carry his particular food and pet channels.
His suit rejects Comcast’s defense that it prefers the other channels because of better ratings, higher-quality programming, or other business considerations. Rather, Allen alleges that Comcast’s decision was racially motivated.
This case, which started as a private contract dispute, now puts at risk the civil rights enjoyed by all Americans because a conservative Supreme Court majority hostile to civil rights has a chance to fundamentally re-examine Section 1981. The Court will get to decide – not just for this case, but in a precedent that will impact all future discrimination cases –whether a plaintiff must prove that intentional race discrimination was the decisive factor in a decision (the “but for” standard of proof), or whether race just needs to be one factor in the decision (the 9th Circuit’s “mixed motive” standard, which civil rights leaders strongly support). If the Supreme Court gets to decide this case, it seems very likely that – at a minimum – the court will choose the “but for” standard that is currently used in most jurisdictions outside the 9th Circuit.
That would be a major setback to the civil rights community’s advocacy for establishing nationwide the 9th Circuit’s broader “motivating factor” standard. It’s even conceivable that this conservative Supreme Court could go even farther, exploiting the facts of Mr. Allen’s private contract claim to justify an even more regressive outcome by applying the “but for” standard in EEO retaliation, fair housing, voting rights, or other claims. Civil rights groups such as the NAACP have jumped into this case, filing amicus briefs that seek to convince the court not to embrace the “but for” standard. What I suggest now is that the civil rights groups try to persuade both parties to help get us out of this precarious place in history. To do that, it’s essential that Allen withdraw his $20 billion lawsuit, and that Comcast withdraw its petition for certiorarito the U.S. Supreme Court, preferably before the November 13, 2019 oral argument.
Given Allen’s success as an African American businessman, these channels cannot be so important to him that it’s worth placing all of our civil rights at risk. Likewise, Comcast, which ranks #2 on Fortune’s Global 500 for workplace diversity and has one of the strongest records of programming diversity in the industry, should demonstrate those values by withdrawing its petition for Supreme Court review if Allen also agrees to step back from the ledge.
Both parties should close their eyes, take a leap, and hold their noses if they must, but do their part to take this case off the docket of a deeply conservative court. Otherwise we might all find ourselves facing an uncertain future, stripped of key civil rights protections. No contractor channel is worth the risk.
Maurita Coley, a veteran communications attorney and former executive at BET Networks, serves as president and CEO of the Multicultural Media, Telecom, and Internet Council (MMTC).